Mr Tim Hird v SilkRoad Inc T/A SilkRoad

[2014] FWC 5035

[2014] FWC 5035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Tim Hird
v
SilkRoad Inc T/A SilkRoad
(U2013/16589)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 30 JULY 2014

Application for relief from unfair dismissal.

[1] Mr Hird lodged an application pursuant to s394 of the Fair Work Act 2009 (the Act) on 14 December 2013. The application was listed before me on 28 March 2014 for determination of a jurisdictional objection made by the respondent SilkRoad Inc trading as SilkRoad (SilkRoad).

[2] On 28 March 2014 Mr Earnshaw, Managing Director, appeared for SilkRoad. Mr Hird did not attend. Mr Hird was given a copy of Mr Earnshaw's materials and the transcript and a further opportunity to make a submission. Following that opportunity correspondence was entered into by both parties regarding SilkRoad’s objection and Mr Hird's response to it. The final submission was received by me on 26 June 2014.

[3] Mr Hird commenced employment with SilkRoad on 27 June 2013 as the full-time Regional Sales Manager, Australia North. His last day of employment was 5 January 2014.

[4] Mr Earnshaw submitted that Mr Hird was excluded from the jurisdiction of the Fair Work Commission because, at the date of termination of his employment, he earned above the relevant high income threshold.

[5] Mr Earnshaw submitted that the applicant earned a base salary plus superannuation and was provided with a $15,000 car allowance which was predominantly for his personal use. If Mr Earnshaw's submission regarding the car allowance was correct, Mr Hird was above the threshold. Mr Hird disputed the factual basis of that submission.

[6] Mr Earnshaw provided a copy of Mr Hird's contract of employment 1 and a Pay History. These documents demonstrated a salary above the high income threshold. Mr Earnshaw submitted that the motor vehicle was predominantly provided for personal use, with an occasional business use. Mr Earnshaw provided a graph in the Pay History document2 which he submitted demonstrated the possible meetings undertaken by Mr Hird in the preceding 12 months which might have involved a business use of the vehicle. Mr Earnshaw also provided a copy of Mr Hird’s expense claims for 2013 which demonstrated that the applicant did not make any motor vehicle mileage claims, submitted a number of taxi claims and was reimbursed.

[7] Mr Hird objected to Mr Earnshaw's interpretation of the motor vehicle allowance. He stated that the records did not accurately reflect the time and distance covered for meetings where his car was used. He submitted that at commencement of his employment it was agreed that he would use his car instead of hiring a vehicle or taxi and seeking reimbursement from his employer. Mr Hird did not dispute that he used his car for personal purposes. He dismissed the lack of mileage claims in 2013 on the basis that he was using his car "via an allowance" and that the taxi claims were for trips to and from the airport, or when overseas. He relied on the termination notice provided by Mr Earnshaw which did not take into account the motor vehicle allowance when stating his income.

[8] I am satisfied and find that, having considered the evidence provided by both parties, the proportion of car allowance provided to Mr Hird which was used for personal purposes was above 70% and therefore was sufficient to take his income with SilkRoad beyond the high income threshold.

[9] The jurisdictional objection of SilkRoad is upheld. The application of Mr Hird is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Exhibit SR1

 2   Exhibit SR2

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